§ 45a-436 — (Formerly Sec. 45-273a). Succession upon death of spouse. Statutory share.

Connecticut § 45a-436

• Jurisdiction: Connecticut
• Title 45a: Probate Courts and Procedure
• Ch. 802b: Decedents' Estates

Text

(a) On the death of a spouse, the surviving spouse may elect, as provided in subsection (c) of this section, to take a statutory share of the real and personal property passing under the will of the deceased spouse. The “statutory share” means a life estate of one-third in value of all the property passing under the will, real and personal, legally or equitably owned by the deceased spouse at the time of his or her death, after the payment of all debts and charges against the estate. The right to such third shall not be defeated by any disposition of the property by will to other parties. (b) If the deceased spouse has by will devised or bequeathed a portion of his or her property to his or her surviving spouse, such provision shall be taken to be in lieu of the statutory share unless the contrary is expressly stated in the will or clearly appears therein; but, in any such case, the surviving spouse may elect to take the statutory share in lieu of the provision of the will. (c) The surviving spouse, or the conservator or guardian of the estate of the surviving spouse, with the approval, after notice and hearing, of the Probate Court by which such conservator or guardian was appointed, shall, not later than one hundred fifty days after the mailing of the decree admitting the will to probate, file a notice, in writing, of his or her intention to take the statutory share with the Probate Court before which the estate is in settlement, and if such notice is not so filed, the surviving spouse shall be barred of such statutory share. (d) If the Probate Court has allowed a support allowance under section 45a-320 from the deceased spouse's estate for support of the surviving spouse and for the support of his or her family, the surviving spouse shall not take his or her statutory share until the expiration of the time for which the support allowance is made. (e) The statutory share shall be set out by the fiduciary charged with the administration of the estate or, in the discretion of the Probate Court on its own motion or on application by any interested person, by distributors appointed by the Probate Court. The statutory share may consist of personal property or real property, or both, according to the judgment of the fiduciary or distributors. (f) The provisions of this section with regard to the statutory share of the surviving spouse in the property of the deceased spouse shall not apply to any case in which, by written contract made before or after marriage, either party has received from the other what was intended as a provision in lieu of the statutory share. (g) A surviving spouse shall not be entitled to a statutory share, as provided in subsection (a) of this section, or an intestate share, as provided in section 45a-437 , in the property of the other if such surviving spouse, without sufficient cause, abandoned the other and continued such abandonment to the time of the other's death. (h) The provisions of this section shall apply to estates of all persons dying on or after July 1, 1985.

Legislative History

(1949 Rev., S. 7309; 1949, 1951, 1955, S. 3002d; 1961, P.A. 64; 1963, P.A. 325; 1969, P.A. 233, S. 1; P.A. 73-36, S. 1, 2; P.A. 76-435, S. 61, 82; P.A. 78-199, S. 2; P.A. 80-476, S. 322; P.A. 85-332, S. 1, 2; P.A. 87-384, S. 33; P.A. 89-56, S. 1; P.A. 90-45, S. 5; 90-146, S. 9; P.A. 98-219, S. 27; P.A. 13-81, S. 6.) History: 1961 act authorized one-third life use share to be set out by fiduciary charged with administration of estate and described setting out by distributors as “in the discretion of the probate court on its own motion or upon application by any interested person”; 1963 act clarified provisions with specific references to surviving spouse and conservator or guardian of estate; 1969 act replaced remaining references to “wife”, i.e. widow, with references to surviving spouse; P.A. 73-36 replaced previous provisions whereby if no will exists, survivor is to take (1) one-third share absolutely, or (2) if no children, total estate to $5,000 and one-third of remainder, or (3) if no children or parents, total estate absolutely, with new provisions, applicable to estates of all persons dying on or after January 1, 1974; P.A. 76-435 added Subsec. (b) re applicability of provisions; P.A. 78-199 added Subsec. (c) including children born out of wedlock as “issue”; Sec. 46-12 transferred to Sec. 45-273a in 1979; P.A. 80-476 divided former Subsec. (a) into Subsecs. (a) and (b), relettering former Subsecs. (b) and (c) accordingly and made minor changes in wording; P.A. 85-332 amended Subsec. (b) increasing share of surviving spouse of intestate estate from the first $50,000 to the first $100,000 and made provisions of section applicable to estates of all persons dying on or after July 1, 1985; P.A. 87-384 deleted “within two months after the expiration of the time limited for the exhibition of claims against the estate” and substituted “not later than two hundred ten days from the date of appointment of the first fiduciary”; P.A. 89-56 amended Subsec. (a) to delete provision which barred either party being entitled to such statutory share if such party without sufficient cause abandoned the other and continued such abandonment to the other's death and added a new Subsec. (c) re the bar on entitlement by a surviving husband or wife to an elective or intestate share if such surviving spouse has abandoned the other, and relettered former Subsecs. (c) and (d) accordingly; P.A. 90-45 reduced the time period for filing notice of intent to take the statutory share from 210 to 150 days from the appointment of the first fiduciary; P.A. 90-146 revised section by defining “statutory share” and removing provisions re distribution of property to surviving spouse if there is no will; Sec. 45-273a transferred to Sec. 45a-436 in 1991; P.A. 98-219 amended Subsec. (c) by deleting “public” before “notice”; P.A. 13-81 substituted “Probate Court” for “court of probate”, amended Subsec. (c) to require notice of intent to take statutory share to be filed not later than 150 days after mailing of decree admitting will to probate, rather than 150 days from date of appointment of first fiduciary, and made a technical change in Subsec. (g). Annotations to former section 46-12: Rights of wife in general; in stock which husband has agreed to bequeath to his son; in estate tail of husband dying without issue. 66 C. 401; 68 C. 92. Section does not prevent husband or wife during life from disposing of or encumbering property. Id., 101; 71 C. 237. History of provision. 72 C. 153. Widow may be put to election between claiming gift in will and statutory right. 74 C. 131; 79 C. 621; 80 C. 47. Widow's right not entitled to peculiar favor. 78 C. 484. What constitutes abandonment. 90 C. 210; 107 C. 106; 123 C. 424. Court cannot make allowance for husband's support from estate of wife. 91 C. 76. Wife as sole heir; “heir” is construed under law existing at death of relative. 98 C. 826; 103 C. 129; 106 C. 196. Widow's renunciation of provisions in will and election to take under statute may affect other gifts in will; statutory share is not lost by remarriage after death of husband; insurance policy made payable to wife as sole beneficiary not included in computing her share of estate. 100 C. 371. “Heir” in will may include husband or wife. 106 C. 184. The interest of the surviving spouse includes only property inventoried and distributable in this jurisdiction; husband entitled to income from date of death. 110 C. 36. Status of child adopted in another state. 115 C. 163. Cited. Id., 273; 122 C. 62; 126 C. 657; 127 C. 723. When statutory share is set out, general legacies should be first taken. 120 C. 91. Having elected statutory share, husband not entitled to interstate portion. 121 C. 594. Contract whereby each spouse releases statutory share valid even though no physical consideration transferred. 132 C. 140. Construction of “amount to which my wife may be entitled under the laws and statutory enactments” of Connecticut. 133 C. 701. Cited. 135 C. 252; 139 C. 494; 140 C. 147, 153. Wife elected statutory share in lieu of will, but this not a bar to obtaining larger share if will found invalid and total intestacy results. 146 C. 188. Cited. 149 C. 129. Not fraud upon wife for husband to dispose of his property before death to reduce his estate. 151 C. 367. Cited. 159 C. 486; 165 C. 376. Provision in husband's will that wife's legacy was in lieu of statutory allowance for support pending settlement of estate is contrary to public policy and void. 168 C. 101. Cited. 10 CA 183. Where voidable marriage not judicially pronounced invalid during lifetime, death of one of the parties ends all opportunity to do so. 3 CS 1. Cited. 4 CS 385; 5 CS 142. Section not applicable where claim of surviving husband is to property which never belonged to wife. 6 CS 141. Cited. 11 CS 135; Id., 171. Using the word “accept” in place of “receive” gives the meaning that was intended. 12 CS 139. Cited. 20 CS 88; 21 CS 92; 26 CS 259; 31 CS 271. Annotations to former section 45-273a: Discussion of ante nuptial agreements. 181 C. 482. Cited. 183 C. 35; 192 C. 138; 211 C. 121. Cited. 10 CA 183; 17 CA 431. Statutory approval of contracts entered into in contemplation of marriage in which each prospective spouse releases any claim to property owned by the other at time of marriage or thereafter, agreeing that on death of either, survivor should have no claim to his or her property. 33 CS 44. Annotations to present section: Cited. 226 C. 51; 238 C. 839. Surviving spouse's statutory share must be calculated prior to the deduction of estate taxes and based on the value of the estate as of the time of distribution; the rate of income on surviving spouse's statutory share from the date of death to the actual setting out of the third will be the average yield of the estate for this period. 317 C. 185.